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The subject of marijuana and banking has garnered more and more attention as an increasing number of States decriminalize or legalize its use, medicinally and recreationally. Still, no matter what State law might say about the matter, a wide array of commercial and banking activity remains criminal insofar as it is connected with marijuana. This a consequence of federal laws including the Controlled Substances Act, money laundering statutes, the unlicensed money transmitter statute, and the Bank Secrecy Act. Of course, there are also inchoate crimes in connection therewith.

The U.S. Attorneys of the ninety-four federal districts have been advised to weigh the charging of such violations under the DOJ’s well-established Principles of Federal Prosecution. It is not clear how charging decisions would be made with respect to financial institutions that service the marijuana trade in States where it is permitted under State law; however, this question has grown more pronounced: Will Congress act to accommodate States’ differing policies toward marijuana?

The Proposed STATES Act

Several members of Congress have proposed such an accommodating approach through the “Strengthening the Tenth Amendment Through Entrusting States Act” (the “STATES Act”), S. 3032; H.R. 6043.

If enacted, this legislation would generally withdraw the Controlled Substance Act’s application to persons manufacturing, producing, possessing, distributing, dispensing, administering, or delivering marijuana if doing so in compliance with applicable State law or applicable Tribal law (if within a federally-recognized Tribal jurisdiction located within a State that, itself, permits such marijuana activity).

The STATES Act would also remove “industrial hemp (as defined in . . . the Agricultural Act of 2014” from the Controlled Substance Act’s coverage.

Certain applications of the Controlled Substances would remain with respect to marijuana, such as those related to transportation safety and non-medicinal distribution to persons under twenty-one years of age.

Range of Support

At this stage, there are indications of bipartisan support for the STATES Act.

Further, President Trump has indicated that he will sign the STATES Act if passed by Congress. The day after the bills were introduced, President Trump was asked, “Do you support Senator Gardner’s marijuana federalism bill?” He answered, “I really do. I support Senator Gardner. I know exactly what he’s doing. We’re looking at it. But I probably will end up supporting that, yes.”

Current Status

After introduction, H.R. 6043 was “[r]eferred to the Committee on the Judiciary, and in addition to the Committee on Energy and Commerce, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned.” It remains in committee.

No action has been taken on S. 3032 since its introduction.

Other Bills Pending

The STATES Act is not the only legislation pending in Congress which may affect marijuana banking.

Compare jurisdictions:Restructuring & Insolvency

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